What to Expect in the Trump Disqualification Case

The Supreme Court will face a blizzard of novel legal issues in hearing Colorado’s effort to kick Donald Trump off the ballot.

T his morning, the Supreme Court hears arguments on whether the Colorado Supreme Court was right to throw Donald Trump off the ballot on the theory that Section 3 of the 14th Amendment disqualifies him from serving in federal office again after he “engaged in insurrection” in connection with the January 6, 2021, riot at the Capitol. It is a momentous occasion. Never before has the Court heard a case to decide who may become president; when it has been asked after the fact to help resolve who was actually elected, it has not enjoyed the task.

If the Court affirms Colorado’s decision, Trump’s bid to reclaim the presidency would be over; his ineligibility would be the law of the land in every state. The Republican presidential primary would be thrown into chaos. It is likely that Ron DeSantis, Vivek Ramaswamy, and possibly other vanquished contenders would reactivate their campaigns. Trump supporters would be livid, and it is hard to predict how badly that would go. Probably the voters would react much the same way they did after the elite, inside-D.C. “corrupt bargain” between John Quincy Adams and Henry Clay denied Andrew Jackson the presidency in 1824.

But few observers expect the decision to be affirmed. There are a variety of grounds open to the Court to reverse or vacate the decision. Different paths would do more or less to put the issue to bed.

How the Arguments Will Go

The arguments begin at 10 a.m. You can listen live to the arguments here. The case is captioned Trump v. Anderson, so Trump will be referred to as the petitioner and his challengers as the respondents, even though they were the ones who originally filed the lawsuit.

The Court has granted each side 40 minutes to argue. On Colorado’s side, it gave 30 of those minutes to the activists who filed the case, and ten to the Colorado secretary of state, who is appearing in good part to discuss the timing and logistics of when Colorado needs to get ballots printed and votes mailed. Law professor Seth Barrett Tillman asked for a chance to argue his theories about Section 3 not applying to presidents, but the Court denied the request.

Arguments these days are a bit more orderly than they once were; after the experience of doing arguments over Zoom, Chief Justice Roberts and his colleagues warmed to a system in which the Chief takes turns asking everyone to question the attorneys. That doesn’t prevent interruptions or some free-for-all, but it lets the justices give more respect to one another’s questioning time. One result is that Clarence Thomas has discarded his longstanding reticence about engaging in questioning.

If you’re planning to listen, here’s a guide to the issues the Court will be raising. In a normal Supreme Court case, there may be two or three main legal issues. The Court ideally prefers cases that present just one issue for decision, but litigation isn’t always made to order.

Often, the Court must first decide whether it has the power to decide the main issue, and whether it should. Questions of judicial power — whether there is jurisdiction or standing to sue — are required to be decided first. Other questions are within the Court’s discretion to decide what issues to resolve, if just one can dictate who wins. The Court will typically try to avoid opining on issues it doesn’t have to reach in order to conclude who wins.

This is different. There is a blizzard of legal issues, almost none of them have been decided by many courts before, even fewer of them have ever been the subject of a Supreme Court case, and by taking the whole case on an accelerated timetable, the Court has put itself in a position to wade through a lot of legally uncharted ground. So, the argument could easily go off the rails in any number of directions.

There are two sets of parties on each side: the challengers, the Colorado secretary of state, Trump, and the Colorado Republican Party (which is technically listed as a respondent for procedural reasons). There have also been, by my count, 76 amicus curiae briefs filed by a menagerie of state governments, federal elected officials, academics, think tanks, activist groups, etc. Many of these delve into side issues or distinct angles on the main questions. That just multiplies the avenues open to the Court, which the justices will labor to limit.

The Power to Decide

There are three general sets of questions before the Court. The first set of questions are about the legal process. The Court will consider whether the Colorado supreme court — or any state court — has the power to decide whether Trump can be on the ballot. None of these are exactly mandatory jurisdictional questions: Trump undoubtedly has standing to appeal his challenge to the Colorado ruling in federal court, and the battery of federal-law issues and the finality of Colorado’s decision mean that the Court has jurisdiction.

There are at least eight major process questions:

1. Is the decision to disqualify presidential candidates non-justiciable — i.e., inappropriate for courts to decide — because presidential elections are national and Congress can do so when counting electoral votes? Some lower courts concluded that “Birther” challenges to presidential candidates could be resolved by courts, but others found that only Congress could resolve the question. The Court has never settled this. If the Court takes this approach, the issue will hang over Trump’s candidacy until after Election Day.
2. Does Section 3 disqualify Trump from being a candidate for president, or only from holding the office? The text only discusses holding office. But various states, such as Colorado, have rules that prohibit ineligible candidates from the ballot. Some state supreme courts, such as Minnesota’s, have already ruled that their state laws do not permit a challenge to listing Trump on a primary ballot. If the Court rules that Section 3 challenges cannot affect ballot access, it again kicks the can to Congress.
3. Does the Republican Party have a First Amendment freedom of association right to nominate Trump, even if he is legally disqualified from holding the office? The Socialist Party ran Eugene V. Debs for president in 1920 while he was in prison, which made a statement about civil liberties. This, again, would defer the ultimate qualification for office issue to Congress. But it may be that the 14th Amendment, having been added to the Constitution later than the First Amendment, simply creates an exception to such rights.
4. Is Section 3 self-executing? Some constitutional commands are immediately enforceable, and if so, state courts are bound by the Supremacy Clause to enforce them. That’s true of much of the Reconstruction amendments (the 13th, 14th, and 15th). But an 1869 ruling by Chief Justice Salmon P. Chase, Griffin’s Case, concluded that Section 3 doesn’t take effect unless Congress passes an enabling statute. Griffin’s Case isn’t a binding Supreme Court precedent because it was decided by a single justice riding circuit, but it frames the dispute.
5. Has Congress ruled out a civil process for determining disqualification? A criminal statute bans insurrections and allows for disqualification upon conviction. There was once a separate civil statute, which Congress repealed. Does this reflect a congressional choice to exclude disqualification without a conviction?
6. Does the Due Process Clause require a criminal conviction, or at least some specified type of civil process not followed by Colorado, before disqualifying a candidate? A ruling specific to how Colorado handled the case could mean that the litigation goes on, and perhaps returns another day to the Court.
7. Is Trump somehow protected from Section 3 disqualification because the House impeached him for the same conduct and the Senate declined to convict — therefore also declining to bar him from future office? This seems an unlikely argument not really developed in the briefs. It was just rejected by the D.C. Circuit as a basis for precluding a criminal prosecution of Trump.
8. Did Colorado violate its own state rules? Trump’s petition argues that the Electors Clause of Article II was violated because — as the three dissenters in the Colorado supreme court argued — the Colorado courts had violated their own statutory deadlines. This raises a question the Court left open last spring in Moore v. Harper: When has a state court so flouted its own rules as to deny the state legislature its proper role in charge of making rules for selecting presidential electors? But a ruling on the narrow hearing-deadline issue would similarly leave challenges going in other states. That’s bad because Maine, the other state to rule against Trump so far, actually provided him with one electoral vote in 2016 and 2020. It could matter in November.

Coverage Issues

In a way, the cleanest manner for the Court to put this issue to bed without ruling on the merits would be to hold that Section 3 simply doesn’t apply to Donald Trump. There are two related arguments:

1. Is the presidency an “office . . . under the United States” covered by Section 3’s disqualification clause? This is the academic theory that Tillman and some other conservative scholars have pressed for some time. It would, however, open a minefield because distinctions among “Offices” described in the Constitution are not limited to Section 3. The issue was, for example, also raised with regard to the emoluments clause and to whether the president can be disqualified from holding the job again if convicted by the Senate following impeachment. On the other hand, a narrow ruling on the coverage of Section 3 would not end efforts to use it against lower-ranking officials.
2. Is the president’s oath of office not one of the oaths to the Constitution covered in Section 3 because it is described in slightly different words?

Merits Questions

If the Court gets past all of those hurdles, it faces the question of Trump’s conduct:

1. Does the January 6 riot amount to an “insurrection”? If not, is there some other conceptual framework for describing Trump’s post-election challenge as an insurrection?
2. Did Trump “engage” in the insurrection?
3. Did Trump in some way aid and comfort enemies of the United States? This wasn’t a basis for the Colorado ruling, and given its weakness as a legal argument, it is unlikely to be addressed this morning.
4. Does it violate the First Amendment’s speech guarantees to disqualify Trump based on his political speech? That includes the question of whether Trump’s conduct amounts to incitement of imminent, lawless action under Brandenburg v. Ohio. This, too, raises the question of whether Section 3 has effectively repealed and replaced the First Amendment standard in Section 3 cases.

It’s a full menu. We’ll see soon what the Court samples.